Legacy case offers hope for charities when wills are contested

Legacies: hope for charities on costs
Legacies: hope for charities on costs

Charities could be offered better protection against mounting costs in some contested legacy cases after a recent case set a legal precedent, a lawyer has said.

Tara McInnes, a senior associate solicitor at the law firm Gardner Leader, said charities and other parties defending their claims to estates would no longer have to pay full costs in passive defence claim cases.

In a passive defence claim case, the person wishing to challenge a will says they do not believe the will to be valid without giving their reasons or laying out the basis for their own claims.

This prevents the executor from carrying out the dead person's wishes and forces them to take the case to court if they want to move forward – meaning those defending their claim, not the person challenging it, are forced to take on the costs.

But in April, the High Court ruled that Ruth Simmonds should pay £65,000 towards the cost of making a passive defence claim contesting her father's will, which left his fortune to his former partner, Bernice Elliot.

McInnes, who represented Elliot, said the ruling set a legal precedent that could benefit charities involved in legacy disputes – in the past they might have had to cover the legal bills or be forced into settling for a weak claim.

"This new 'costs rule' sends a reassuring message to charities and a stark warning to the public that, if you wish to dispute a will, you must be prepared to prove you have good reason for opposing it or to pick up the legal costs," she said.

"And to me it seems only fair that you cannot hold up a will like that without explaining your justification and not expect to shoulder some of the cost."

But Robert Oakley, a partner at the law firm Bates Wells Braithwaite, said passive defence claims were not common.

"These sorts of cases are very rare, so the number affecting charities will be even smaller," he said. "Does this case represent a sea change for legacy cases? No."

McInnes acknowledged that there had been relatively few cases in the past and said her team had struggled to find examples of legal precedents in the run-up to the Elliott v Simmonds case.

But she said she was dealing with another such case and believed they could be on the increase.

"Challenges to legacies in general are on the rise, so it may be that this will include a rise in the number of passive defence cases," she said.

"This ruling will help to protect against the unfairness of disgruntled family members making a claim but expecting the other party to take on all the costs."

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